One good way to size up a new book is to imagine the author's
intended audience and purpose. In his introduction to Excusing Crime,
(1) Jeremy Horder, Reader in Criminal Law and Tutor in Law at Worcester
College, Oxford, saves his reader the trouble of such imagining by
telling us that the "arguments offered" in the volume
"are firmly within the tradition of so-called 'analytic',
or--more correctly--'applied ethical' thinking about law, and
they are in that respect aimed at judges in the higher courts, and at
other law reforming bodies, as well as at law students." [5]
Horder's project is to build a complex taxonomy of criminal law
excuse practices and to use that account of "why things are as they
are" to argue, on the basis of his version of liberal theory,
against "the restricted range" of excuses in the United
Kingdom and elsewhere. [1] As someone who teaches and writes about
criminal law in a United States law school, reading Excusing Crime was a
little like listening in on a fascinating conversation at a nearby table
in a crowded restaurant. The law students Horder has in mind are
undergraduates for whom philosophical analysis of the sort he undertakes
is less foreign than it would be for the great run of students at
American law schools. (2) His interlocutors--those with whom he imagines
himself in conversation--mostly are British academics, including John
Gardner, Timothy Macklem, Alan Norrie, and Andrew Ashworth. The book
does contain references from time to time to American criminal law
theorists, including Michael Moore, Joshua Dressier, Heidi Hurd, and
George Fletcher, but the overwhelming center of gravity is plainly on
the other side of the Atlantic. So too, the great bulk of legal
authority under study consists of U.K. cases and statutes and,
occasionally, law reform commission proposals. There are, at best,
passing references to U.S. cases, and only a few targeted discussions of
the Model Penal Code.

Horder's basic framing of his taxonomic project is also
characteristic of English rather than American thinking. Excuses, he
tells us, excuse wrongful conduct "by shedding favourable moral
light on what D did through a focus on the reasons that D committed that
wrongdoing, where those reasons played a morally 'active' role
in D's conduct (meaning that what D did or what happened to D can
be subject to critical moral evaluation)." [9] This emphasis on the
"morally active" reasons for an actor's conduct, which is
central to Horder's notion of excusing, may incline some readers to
think about the normative judgments inherent in justification defenses,
and Horder's taxonomy acknowledges that some excuses--those
characterized by strong "actively justificatory" elements
(3)--may come very close to being justification claims. [49] In
addition, the requirement that excuses must be grounded in "morally
active" reasons serves to exclude claims of non-responsibility that
many U.S. theorists regard as legitimate excuses, including insanity and
infancy defenses, precisely because these non-responsibility claims
involve reasons for action with respect to which the actor is
"morally passive." [9] To be sure, Horder's complex
analytic system includes some qualifying excuses--those which are
"capacity based"--that come very close to being claims of
non-responsibility, but his insistence on including a normative element
ultimately distinguishes these excuses from pure claims of
non-responsibility. (4)

Criminal law scholars in the United States generally do not line up
the pieces in this fashion. On the one hand, they often think about
justification defenses and excuses as more discontinuous than Horder
does. On the other hand, though there is no absolute uniformity on this
point, most American criminal law theorists regard non-responsibility
claims such as insanity and infancy to be complete excuses. As to the
first point, U.S. scholarship on the distinction between justification
and excuse has become something of a cottage industry. (5) Although
there are lots of variations on the theme, these writers generally take
the position that justified actions are not wrongful, whereas excused
conduct is wrongful behavior that is exempt from punishment either
because the actor's characteristics or the circumstances in which
he or she acted render that conduct not culpable. (6) With respect to
capacity-based non-responsibility claims, American writers generally do
not insist that an actor's conduct be grounded in morally active
reasons in order to qualify for an excuse. Sanford Kadish's widely
cited article on criminal law excuses, for example, explains that
"the disabilities of choice that ground excuse in our law seem to
fall into one of three groups": those disabilities that produce
"involuntary actions"; those that produce "deficient but
reasonable actions"; and those that render all actions
non-responsible. The excuses in Kadish's third category are defined
in terms of the actor's "inadequate capacities for making
judgments and exercising choice," and include infancy and legal
insanity. (7)

By virtue of his appreciation that some, but not all, excuses
contain justificatory elements, and given his insistence that pure
claims of non-responsibility are not excuses, Horder has defined a field
of study that is both broader and narrower than many of his readers are
likely to expect. (8) This reconfiguration permits Horder to explore the
"theoretical underpinnings" [1] of existing excuses along
three intersecting "dimensions," and this explication and
elaboration of his taxonomy takes up most of the first half of the
volume. The effort provides the reader with new analytic tools to
organize and understand the seemingly unruly universe of excusing
practices in English and American criminal law, and it is the principal
contribution of the book.

The first dimension describes the differences between
"explanatory" and "adopted" reasons for an
actor's conduct. This dimension is concerned with "the nature
of the morally salient moving force or motivating element behind
D's conduct." [45] Adopted reasons are reasons upon which an
actor "positively chooses" to act. Explanatory reasons, by
contrast, are reasons for a person's conduct that he or she does
not consciously adopt as the grounds for his or her action, but which
nevertheless can be said to remain subject to moral evaluation. [10] One
possible example of an excuse based upon an adopted reason is what
Horder calls "excessive defence" and what some U.S. courts
term imperfect self-defense. (9) In these cases, the defendant claims an
excuse or partial excuse, notwithstanding that he or she has used more
force than was reasonably necessary to fend off an unlawful attack, on
the grounds that "the sheer strength of D's fear made the
choice of a heavy-handed course of action as a means of thwarting an
attack seem entirely rational and proper." [13] A second example of
an excuse centered on an adopted reason is a mistake-of-fact claim based
upon a defendant's conscious choice to engage in wrongful conduct
because of a mistaken belief that circumstances were such that that
conduct was permissible. By contrast, an excuse growing out of a
predominantly explanatory reason for a defendant's conduct
"comes close to a plea that the conduct is involuntary." [47]
If the conduct is a product of the effort or determination of the actor,
(10) however, even "when D 'instinctively' raises an arm
to shield him- or herself when V suddenly advances with a raised fist,
or spontaneously 'explodes with rage' and lashes out when V
provokes him or her," the conduct is still subject to moral
evaluation and is still potentially eligible for an excuse (rather than
a claim of non-responsibility). (11) [47] The distinction between
adopted and explanatory reasons is important in Horder's account in
a number of respects, but perhaps nowhere more so than with regard to
provocation. Thus, when a homicide defendant "decides to make his
or her anger grounds for retaliation"--that is, when retaliation
stemming from extreme anger is the defendant's adopted reason for
action--Horder believes that the claim for a partial excuse of
provocation is weaker than when "a loss of self-control is merely
the explanatory reason for the retaliatory conduct." [12]

The second dimension described by Horder concerns the nature of the
actor's perspective at the time of wrongdoing. In Horder's
terms, a claim to excuse is "actively justificatory" if the
actor's decision to act was based upon a contemporaneous belief
that he or she was factually or morally justified. Of course, this claim
is not that the defendant really was justified in doing what he or she
did, but only that he or she believed that the conduct was the right
thing to do. By contrast, other claims to excuse, which Horder calls
"capacity based," while acknowledging that the defendant was
aware at the time of acting that he or she was not justified, provide a
partial or complete defense on the grounds that the defendant's
capacity to avoid wrongdoing was limited in a way that sheds favorable
moral light on his or her conduct. With respect to actively
justificatory excuses, in which the defendant believed that his or her
conduct was either factually or morally justified, a missing element
defense may be available if the defendant's honest belief
"negatives" a required mental element in the charged offense.
(12) Horder points out, however, that some criminal statutes require a
mistake of fact to be both honest and reasonable in order to serve as
the basis of a complete defense. In these cases, he suggests, the
objective reasonableness requirement "shows that it [the mistake
claim] is really doing excusatory work respecting wrong." (13) [49]
Other excuses are based upon the assertion that "no more could
reasonably have been expected of D, in terms of courage, powers of
self-control, or of foresight," notwithstanding the fact that the
defendant was aware at the time of acting that the conduct was wrongful.
[5051] These capacity-based excuses include some types of provocation,
duress, and diminished capacity. It may also be possible to combine
actively justificatory and capacity-based elements in a single excuse
claim. Thus, although much duress doctrine is limited to capacity-based
conceptions about what could reasonably be expected of an ordinary
courageous person under the circumstances, it would not be incoherent,
Horder suggests, to require a showing that, at the time of acting, the
defendant also mistakenly believed that his or her conduct was
justified.

The third and final dimension described in Horder's taxonomy
of excuses concerns the grounds on which a defendant's conduct may
be "viewed in a favourable moral light." This dimension
operates by way of a distinction between "predominantly
ascriptive" grounds for such an evaluation versus a
"predominantly normative basis for so doing." [52-53] Horder
constructs this distinction around the work of Joseph Raz, who has
suggested that "[n]ormative theory is primarily concerned with
establishing what people ought to do" whereas "[t]he theory of
ascription is concerned with the conditions in which blame or guilt can
be ascribed to people." (14) [53] Horder demonstrates the
distinction between predominantly ascriptive and normative grounds for
excuse in the context of duress cases. He begins by observing that all
duress defenses have "at least one ascriptive aspect to them,"
which is the capacity of significant fear to "alter the balance of
reasons in D's mind, so that he or she understandably gives
priority to saving him- or herself, if need be by committing the wrong
in question." In predominantly ascriptive forms of duress, there
may be very little else to say about the defendant's conduct,
except that we do not blame him or her "at all, or at least not all
that much, for giving in to certain kinds of threats by doing certain
kinds of wrongs." (15) [58] In other circumstances, however, we can
understand duress as predominantly normative in nature. Suppose, for
example, that a defendant faces a choice between submitting to a
credible threat of death on the one hand, or giving in to a demand to
invade a minor property interest held by an innocent third party on the
other. Horder points out that a decision to invade the minor property
interest in this case can be treated as a justified instance of
necessity. If, however, the choice is between a threat of death on the
one hand and a non-deadly assault on an innocent third person on the
other, the choice-of-evils defense may slide into an excuse claim for
duress, depending upon the relative harm directed against the innocent.
In such cases, Horder suggests, when it can be said that a
defendant's reaction to the pressing danger "did not go far
beyond what was truly justified," the duress defense will be
predominantly normative in nature. [59] As he puts it: "Even when D
inflicts an unjustified harm on an innocent V, crucial to D's
excuse can be the claim that there was at least a kind of normative or
justificatory 'logic' to D's decision to inflict that (ex
hypothesi, minor) harm, particularly if D did so to avoid certain death
him- or herself." [62]

After setting out in detail the three dimensions comprising his
taxonomy, Horder begins to map various excuses according to the
coordinates he has identified. This portion of the book is a challenging
read, as the following passage demonstrates:

Individual excuses can be differentiated from one another in each
dimension, as can different manifestations of the same excuse; and there
is a surprising amount of variation. Let me give some examples.
Excessive defence and most duress cases involve adopted, actively
justificatory reasons for action (dimensions 1 and 2), and have a
predominantly normative basis (dimension 3). If an excuse claim is
predominantly ascriptive in character (dimension 3), it may also be
capacity-based, as in the cases of provocation, clumsiness, due
diligence or diminished capacity, but that is not always so. [63]

Notwithstanding some unwieldiness, the complex, multi-variable
nature of this approach is clearly superior at a descriptive level to
the alternatives pursued by a number of other theorists. For example,
some writers take the position that provocation is primarily
justificatory in nature, whereas others argue that it is a partial
excuse centered largely on the incapacity of the defendant to control
his or her behavior. (16) Horder's approach, by contrast, permits
us to explore the variety of ways in which strong emotions interact with
defendants' cognitive deliberative processes to produce wrongful
behavior. He points out, for example, that some defendants who
experience great anger "still find it possible consciously to act
for, or in spite of, certain reasons: the case I have been referring to
as one in which people act for adopted reasons." [71] In other
instances, the defendant's "absence of full deliberative,
rational control" over his or her desire to retaliate
"explains why the desire ... is the main ascriptive (excusatory)
focus." Horder's multidimensional approach demonstrates
"that emotions may find intentional expression in action in
different ways, through a distinction between cases in which D acts for
explanatory reasons (when the action is closer to the involuntary end of
the spectrum), and cases in which D acts for adopted reasons (when the
action is closer to a case in which D retains full rational control over
his or her conduct)." [72]

When Horder turns his attention to making sense of the moral claims
embedded in his taxonomy, the payoff for all of his (and his
readers') hard work is apparent. As noted earlier, the central
moral claim is that excuses excuse wrongful conduct when they shed
favorable moral light on that conduct, given the "morally
active" reasons for the defendant's behavior. It is relatively
easy to understand how a defendant who has acted for adopted reasons
that were actively justificatory can make a strong claim in this regard,
but things get more difficult when the defendant has acted for
explanatory reasons and/or claims an excuse based upon his or her
limited capacity to control wrongful conduct. If a defendant has
"explode[d] with rage" or has acted "instinctively"
in response to a victim's provocative conduct, [47] in what respect
can we say that he or she was "morally active" with respect to
the reasons for his or her conduct? It is one thing, suggests Horder, to
withdraw your hand reflexively from a hot stove. That sort of reaction
involves involuntary conduct about which moral evaluation is inapt. It
is quite another matter to undertake wrongful conduct because someone
has tortured you into compliance by holding your hand to the hot stove.
That behavior may be "non-voluntary," says Horder, but it is
properly subject to moral evaluation because you have retained full
control over the execution of the conduct even as your
"deliberative control over whether to engage in that conduct or
not, and on what terms, is severely undermined or non-existent."
(17) [85]

Just as conduct can be located along a continuum from involuntary
to non-voluntary to voluntary-but-coerced to fully voluntary, beliefs
and emotions can also be understood in Horder's terms as falling
out along a spectrum from involuntariness to full deliberative control.
In this respect, Horder rejects the Humean notion that beliefs and
emotions are, by definition, always involuntary or passive. Instead, he
embraces "empirical research, and a philosophical tradition, that
rejects Humean assumptions about human nature, and regards a wide range
of (if not all) beliefs and feelings as having a morally
'active" dimension to them." [79] To be sure, beliefs and
emotions can be involuntary in the same way that a reflective action is,
but only "when they take a very primitive form, when their genesis
does not lie in situations with complex social and moral meaning."
[79] Far more often, Horder argues, a person's beliefs and feelings
are likely to be the product of some degree of "deliberative
control" and are likely to be mediated by culture and social
context. Thus, even though a defendant has acted on the basis of
powerful, and, perhaps, sudden, emotions, we can still undertake a moral
evaluation of both the conduct and the emotions that produced it. (18)

Throughout the book, Horder posits a range of possible scenarios
about the interaction of affective and cognitive processes, and then
offers a series of "applied ethical" prescriptions for these
various possibilities. For example, Horder suggests that a defendant who
has acted on the basis of adopted reasons, but without an actively
justificatory perspective, may still have a claim to an excuse on the
grounds that intense emotions significantly influenced his or her
cognitive deliberations. In these cases, he argues, the actor's
moral claim to an excuse should turn on "what is at stake."
Thus, although existing provocation doctrine in the United Kingdom and
the United States generally assumes that a defendant who acts for
adopted reasons is not eligible for a provocation defense, because the
cognitive deliberation involved in adopting reasons for action are
inconsistent with a loss of self-control, Horder would permit such
claims on a sort of sliding scale. As he explains it:

In a provocation case where D's anger has taken a form coming
closer to the full 'deliberative control' end of the spectrum,
we could expressly require more, by way of provocation, than when
D's anger spontaneously explodes from within without any element of
calculation (the case where D's anger is an explanatory reason for
his or her conduct). The fact that D acts for adopted reasons, in cases
where D is outraged following provocation, means that it would be quite
appropriate for the law to insist that D be responding only to the
gravest of provocations in such cases (the retaliatory stakes must be
very high), or even to deny D an excuse altogether; whereas, the law
might be understandably less insistent on this point in cases where D
reacts immediately and spontaneously to an explosion of passion. [91]

The philosophical tradition upon which Horder draws in taking the
position that beliefs and feelings, as well as conduct, ought to be the
basis for moral evaluation, includes Aristotle, Harry Frankfurt, and
Joseph Raz. In this respect, he is in very good company. On the other
hand, the empirical foundation upon which his arguments rest is far less
clearly realized. What does it mean to say that anger has
"spontaneously explode[d] from within without any element of
calculation," (19) [91] and how is it that other intense emotions
influence rational thinking without causing the actor to bypass
cognitive control? At several critical points in the book, Horder cites
scientific work on the brain and human emotions. The reader is directed,
for example, to a book by Joseph LeDoux entitled The Emotional Brain:
the Mysterious Underpinnings of Emotional Life, and to an article by
Dolf Zillmann on the role of the limbic system in the evolution of human
emotions. (20) Notwithstanding these passing references, though, Horder
does not offer the reader much in the way of a scientific foundation for
his otherwise quite nuanced account of the complicated ways in which
emotion and cognition interact in and through the human brain. This is
too bad, because there is a growing body of literature in the area of
brain science, the emotions, and cognition that is relevant to
Horder's project. (21)

In contrast to the very sketchy empirical foundation provided in
the book, Horder's argument for the development (or expansion) of
three new excuses is carefully grounded in a well worked-out account of
liberal political theory. He frames this part of his enterprise by first
distinguishing between what he calls the "necessary" as
opposed to "sufficient" conditions for a successful excuse
claim. Not surprisingly, given Horder's central moral claim, the
necessary condition is the presence of an explanation for wrongdoing
"that sheds such a favourable moral light on D's conduct that
it seems entirely wrong to convict, at least for the full offence."
[9] In effect, the necessary condition focuses on the moral claims of an
individual to be free from punishment (or to receive mitigated
punishment), given the morally active reasons for his or her conduct.
The sufficient conditions, by contrast, grow out of Horder's
assessment of the community's collective interests in the fair and
effective operation of the criminal law. These conditions operate to
limit individual claims to excuse that satisfy the necessary condition
but that are inconsistent with broader common goods. (22) Among
Horder's sufficient conditions are strategic and common goods
concerns that relate to the fit between legal prohibitions and secular
morality, the legitimacy of the criminal law and the community's
interest in "a culture of compliance and law-abidingness,"
fairness, system administrability, and the proper allocation of
decision-making authority among governmental actors given the relative
institutional competencies of the legislature and the courts.

Horder argues that H.L.A. Hart's account of excuse theory is
over-broad in that it concentrates on the necessary condition for
excuses to the virtual exclusion of any consideration of sufficient
conditions. He is wise to suggest that the failure of Hart and others to
limit excuses by reference to a set of strategic or common goods
criteria has placed considerable pressure on policy makers and scholars
to adopt a relatively pinched view of the range of reasons that might
otherwise count as meeting the necessary condition for an excuse. In
this light, Horder argues that the predominant conception of excuses
within the common law, which he calls the classical theory of excuses,
is over-narrow. To take Hart's formulation, excuses under the
classical conception are focused on "rational defects in any
morally salient 'moving force' behind the act or
omission." [43] Horder criticizes this conception in part on the
grounds that wrongdoing ought to be excusable in certain circumstances
even when no such rational defect is present. That is, an excuse should
still be possible even when the grounds for the defendant's claim
are predominantly normative rather than ascriptive in nature. In
addition, he argues against the tendency of adherents of the classical
theory to distinguish sharply between defendants who have rational
defects and those who have claims of non-responsibility. The former
criticism of the classical view leads Horder to propose new excuses for
"due diligence" and for "demands-of-conscience." The
latter critique is the basis for his proposal for a partial excuse for
"short-comers," that he terms "diminished capacity."

The point of departure for Horder's discussion of all three of
these new excuses is Ronald Dworkin's famous injunction that the
state has an obligation to treat people with equal concern and respect,
"where to treat people with concern is to treat them 'as human
beings who are capable of suffering and frustration', and to treat
them with respect is to treat them 'as human beings who are capable
of forming and acting on intelligent conceptions of how their lives
should be lived." (23) [141] The liberal commitment to treating
people with concern, Horder suggests, may require that some defendants,
who by virtue of "shortcomings" not rising to the level of
insanity are not fully able to regulate their conduct, be accorded a
partial excuse in some circumstances. By contrast, the classical view
that individuals are either fully responsible moral agents or entirely
non-responsible for their conduct, is incapable of taking into
consideration, except at sentencing, the sorts of individualized
deficits that Horder has in mind. Thus, subject to the strategic and
common goods limitations imposed by his sufficient conditions,
Horder's proposal contemplates providing a "diminished
capacity" plea (24) to some defendants who suffer from deficiencies
that do not wholly undermine responsibility, when these defendants find
themselves in circumstances that contain an incipient or incomplete
excusatory factor.

Horder provides a series of very interesting examples of how this
mixing of oil (excuse) and water (mental deficiency) would function. He
begins with cases of family violence, in which a defendant who has
endured abuse at the hands of a partner or parent finally employs deadly
force to escape the escalating battering or psychological abuse. While a
self-defense defense is often available, Horder focuses on cases in
which a true justification defense may be inappropriate. In R v.
Ahluwalia, (25) for example, the defendant, who suffered from
"endogenous depression," killed her abusive husband by setting
fire to him as he slept. No self-defense plea was raised, presumably because there was "considerable evidence of advance preparation for
an attack of a specific kind (burning), and because D admitted in a
letter to her mother that the reason she had set fire to V was to give
him 'a fire bath to wash away his sins.'" Nevertheless,
Horder suggests that "the combination of evidence of mental
disorder and evidence of extraordinary external pressure is sufficient
to justify a judgment that a first-degree conviction would be wrong, and
a partial excuse by way of diminished capacity would be more
appropriate." [181]

Horder also discusses self-defense cases in which evidence of
mental deficiency could be made relevant to a partial excuse,
notwithstanding the defendant's use of excessive force. Thus, in R
v. Martin (Anthony), (26) the defendant who employed excessive or
unreasonable self-defensive force was suffering from clinical depression
that aggravated a paranoid personality disorder. Apparently, there was
expert testimony that the defendant's personality disorder could
have led him "to perceive the threat to his safety to be much
greater than an ordinary person would have thought that it was."
[182] Under existing law in the U.K. and most U.S. jurisdictions, the
depression and personality disorder probably would not be sufficient to
support an insanity defense, and the defendant's idiosyncratic characteristics would not be taken into account in determining the
reasonableness of his perception of necessity. Under Horder's
short-comers approach, by contrast, the evidence would be admissible for
purposes of evaluating a partial excuse of diminished capacity.

Finally, Horder discusses the use of his proposed diminished
capacity defense in some cases involving defendants with deprived
backgrounds. He points out that

[b]oth biological and environmental factors may combine to create
... pressures, in different ways, perhaps particularly in young people
when the influence of attention deficit disorder, hyperactivity, and low
IQ are met with long-term parental indifference or hostility; and the
influence of the environmental factors in the mix has been shown to be
aggravated by the effects of social and economic deprivation. [187]

Horder suggests that these sorts of deficits occasioned by social
and economic deprivation, when combined with some external elements such
as threats or provocation, may support a partial excuse claim under some
circumstances. Although it is common for courts and commentators to
suggest that the effects of deprivation are best taken into
consideration in sentencing, Horder argues that a defendant whose
capacity to navigate trying circumstances was substantially diminished
at the time of an offense, is treated with equal concern only when that
fact is made relevant to an assessment of the level of his or her
criminal guilt. In this respect, Horder's use of liberal theory as
the foundation for his approach to short-comers is quite interesting. A
number of commentators over the past decades have decried "the
modern tendency to view the self as a machinery to be maintained and
repaired by specialists and to rethink what was once known as
'evil' in terms of pathology rather than moral
choice'." (27) Horder's approach appears to avoid these
kinds of dehumanizing tendencies inherent in the rehabilitative ideal
while still taking seriously Dworkin's injunction to treat
short-comers "as human beings who are capable of suffering and
frustration." It does so by refusing to exempt these actors from
moral judgment while simultaneously acknowledging that "they may
be, in some circumstances, just as deserving as the mentally
well-equipped with their own partial excuse claims, of some punishment,
but also of mitigation and leniency, pure and simple, irrespective of considerations of 'maintenance and repair'." [143]

When Horder turns his attention in the final two chapters of the
book to the excuses of due diligence and demands-of-conscience, he
shifts from Dworkin's notion that the state has an obligation to
treat people with concern and concentrates instead on the state's
obligation to treat people with respect. Importantly, respect in these
terms requires the state to recognize that defendants are "human
beings who are capable of forming and acting on intelligent conceptions
of how their lives should be lived." [141] Horder's project in
this respect is to create enough "excusatory space" to support
the liberal values of personal autonomy and tolerance of moral pluralism
while still safeguarding societal strategic interests and common goods
through a consideration of sufficient conditions. The
demands-of-conscience cases involve circumstances in which the defendant
is forced to choose between law abidingness and adherence to important
moral or religious beliefs that conflict with a law of general
application. Horder suggests that when such conflicts arise, the
defendant should be permitted an excuse if his or her decision to engage
in wrongful conduct, (28) judged from the point of view of the law of
general application, was a "relatively trivial legal demand"
compared to the strength or importance of the contrary personal belief.
To hold otherwise, he argues, would be "to place disproportionate
emphasis on the importance of law-abidingness" as against the
competing liberal values of personal autonomy and moral pluralism. [199]
Horder's development of this approach is quite nuanced. He
acknowledges, for example, that there is an important difference between
those who engage in lawbreaking as a "calculated act of
defiance" and those who do so "more or less
spontaneously" out of a "sense of moral obligation."
[200-201] He also works out in some detail where his proposal stands
relative to the broader tradition of civil disobedience. This is good
work precisely because it goes beyond a flat account of individual
rights and explores instead both the individual and collective interests
that are at stake in the cases he has in mind.

In the book's concluding chapter, Horder makes out his case
for the recognition of a due diligence excuse in the area of regulatory
offenses, when the defendant has "done everything humanly possible
to avoid wrongdoing." [4] Horder's starting point here is the
observation that judges and commentators have unduly narrowed the range
of possible excuses by failing to consider fully moral claims to
exculpation in the context of the "bureaucratic-administrative
state." [237] He credits the Canadian Supreme Court in R v. City of
Sault Ste Marie (29) with showing the way toward such an excuse by
permitting a defense in a strict liability case "if D could show on
the balance of probabilities that he took all reasonable care,"
[239] and he broadens the analysis by including the possibility as well
that reasonable ignorance of the law might also be the basis for an
excuse. While the insights Horder offers in this chapter are not as
novel as those provided in the context of his discussion of the
short-comers and demands-of-conscience excuses, his analysis is still
compelling and useful. He argues, in effect, that the common good of
reciprocity requires that the legal system make both substantive and
procedural opportunities available to defendants to answer for their
wrongs. "If, whatever efforts one may have made or precautions one
may have taken, there is simply no answer one can make to a criminal
charge, the substantive fairness of one's trial is threatened, in
that one has no self-sufficient moral reasons, qua individual D, to
engage constructively and co-operatively in the trial process."
[255]

In his consideration of all three of these excuses-short-comers,
demands-of-conscience, and due diligence--Horder achieves his broader
purpose of showing how a detailed and complex understanding of existing
excuse practices supports the extension of available excusatory space,
subject to the important limits imposed by his sufficient conditions.
This careful use of description and analysis to construct an
"anatomy" of existing excuses in order to support claims for
new excuses is the best kind of criminal law scholarship. The book is
certainly not an easy read, but it is well worth the trouble.

(2) Horder is convinced that his effort is neither too detailed for
busy judges, too abstract for policy makers, nor "too difficult for
the average undergraduate law student." Instead, he suggests that
English criminal court judges already are engaged in thinking about
criminal law theory and English law students are "at least as
intelligent and well-qualified, at the point of entry to university, as
undergraduate philosophy students." [5]

(3) An excuse is "actively justificatory" in
Horder's taxonomy when the defendant subjectively believed at the
time he or she acted that his or her conduct was justified, even though
it is later determined that the defendant's honest belief was
unreasonable. [49]

(4) So, for example, "however persistent the
'provocation' one should never be excused for violently
expressing one's temper by harming a crying baby," but one
might succeed in interposing a non-responsibility claim of insanity
under very similar circumstances. [58]

(7) Sanford H. Kadish, "Excusing Crime," California Law
Review 75 (1987): 258-262. See also, Joshua Dressier, "Forward:
Justifications and Excuses: A Brief Review of the Concepts and the
Literature," Wayne Law Review 33 (1987): 1166 (discussing how
mental illness functions to trigger either the "causation
theory" or the "character theory" of excuse).

(8) Indeed, Horder makes precisely this claim with respect to H. L.
A. Hart's classic formulation of excuse theory. Horder describes
Hart's view that "excusing conditions are focused in part on
rational defects in any morally salient 'moving force' behind
the act or omission" as "in a way too narrow, and in a way too
broad an understanding of excuses," because it includes wrongdoing
with respect to which the wrongdoer was morally passive and excludes
some excuses that do not involve irrationality. [43-44]

(11) "[W]e can still ask whether D should have let his or her
temper, or terror, get the better of him or her to the extent that it
did." [12]

(12) See Model Penal Code, section 2.04(1).

(13) A defendant may have an excuse based upon a moral mistake
when, for example, the defendant "believed he was fulfilling his or
her duty to a sick child by simply praying for the child's
recovery." [49] In such cases, the defendant does not have a true
justification defense, because his or her moral conviction was mistaken;
nevertheless, there may be grounds for an excuse within Horder's
conception if the mistake sheds a favorable moral light on the
defendant.

(15) Horder does identify "a further category of case in which
duress cases could be permitted to take a predominantly ascriptive
form." These are cases in which "allowance is made, or should
be made," for certain characteristics, such as youthfulness, that
make the actor more prone to weakness in the face of threats. [63]

(16) See, e.g., A. J. Ashworth, "The Doctrine of
Provocation," Cambridge Law Journal 35 (1976): 292 ("the claim
implicit in partial justification is that an individual is to some
extent morally justified in making a punitive return against someone who
intentionally causes him serious offence ..."); Joshua Dressier,
"Rethinking Heat of Passion: A Defense in Search of a
Rationale," Journal of Criminal Law and Criminology 73 (1982): 421
("It is morally questionable to suggest that there is less societal
harm in Victim's death merely because he acted immorally.").

(17) Still further up the spectrum, Horder argues, is the case in
which the actor engages in wrongful conduct because he or she has been
threatened with torture. Thus, if you commit a wrongful act in order to
avoid my holding your hand to a hot stove, Horder would say that your
compliance is "coerced but it is hardly non-voluntary." [85]

(18) So, too, "beliefs, like emotions such as anger and fear,
are sensitive to reason and are in that sense part of the
'active' side to our moral nature, subject to evaluative
direction or control." [82]

(22) The notion of a "common good" is borrowed by Horder
from the work of John Finnis and Joseph Raz. See, John M. Finnis,
Natural Law and Natural Rights (Oxford: Clarendon, 1980); Joseph Raz,
Ethics in the Public Domain (Oxford: Clarendon, 1994) [cited in Horder
at p. 15].